Non-Freehold and Non-Possessory Interests Flashcards
Tenancy for Years
Key: Specified Time (does NOT have to be for yrs)
MUST specify beginning and ending date
SoF apply if for 1yr+ (if 1yr or less, no SoF)
Termination: NO notice required between L and T
Types of non-freehold estates: landlord-tenant estates
Tenancy for Years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance
Restrictive Covenant types
- impose restriction on USE of land
1) Covenants: in writing and enforced at law (if party wants money damages)
2) Equitable servitude: in writing and enforced in equity (if party wants injunction)
Periodic Tenancy
Key: tenancy repeats (e.g. month-to-month) thus rolls on until one party gives proper notice to terminate
Created by: express agreement, implication (no K for duration), operation of law (lease violates SoF OR holdover tenant)
Termination: notice is REQUIRED AND must give: 1) enough TIME (equal to lenght of period of tenancy unless year-to-year only 6mo notice), AND 2) effective DATE (at the end of the period of tenance e.g. 15th of month to 14th of month)
Duties of Landlord
Deliver possession of prop: actual and legal T remedies (if L fails): L breaches K
Implied Warranty of Habitability (WoH):
- CL: L has no duty to deliver prop in habitable condition
- Modern (Residential ONLY): implied WoH (prop MUST meet basic human habitation stds - compliance w/local code). L cannot retaliate if T reports L for housing code violation
T remedies (if L fails): 1) T moves out AND terminates lease and no obligation to pay rent, OR 2) T stays AND sues for damages, OR 3) T makes reasonable repairs AND deducts costs from future rent
Implied Covenant of Quiet Enjoyment (QE): EVERY lease (res, comm, etc) includes covenant of QE (L cannot interfere w/T’s use of prop
L breaches Covenant of QE by:
1. Total eviction: L enters and keeps T off prop
T remedies: lease terminates, T does not pay
- Partial eviction: L physically excludes T from portion of prop
T remedies: T stays AND does NOT pay rent TEMPORARILY UNTIL prop is given back to T. If partial eviction by other party than L, rent is proportionately reduced (e.g. other party actually owns prop)
3. Constructive eviction: T remedies (SING): Substantial Interference, Notice and reasonable time for L to remedy, Go: MUST vacate w/in reasonable time after L fails to correct
Duties of Tenants
Pay Rent:
L remedies (if T fails):
- CL: L can sue for damages (ONLY rent in arrears) and CANNOT terminate lease
- Modern: sue for damages AND terminate
Maintain prop:
- CL: if lease is silent, T has duty not to commit waste (voluntary, permissive, ameliorate)
- Modern: If prop is destroyed w/o T fault then T has option to terminate, NO duty to rebuild even w/covenant to repair unless otherwise agreed to
L remedies (if T fails):
Repair:
- CL: T is NOT responsible for wear and tear
- Modern: T is absolute insurer, MUST repair and maintain. Once T repairs, T liable for wear and tear unless otherwise agreed to
Not unjustifiably abandon: L remedies (if T fails): - Accept T's abandonment as offer of surrender by L retaking prop and terminating the lease. T has no rent obligation, OR - L relets holding T liable for defficiency under regular K remedies (CL: T has no duty to mitigate. Majority: L MUST make reasonable effort to relet in order mitigate damages)
Tenant’s Tort liability
- Satisfy SoC by
1) Fix hazard
2) Warning signs (do NOT apply to children) - Unknown Trespassor: NO duty of care owed to UT
- Child Trespassor (attractive nuisance): RPP to prevent injuring children trespassing
1) Dangerous condition which Onwer knows or should know about
2) Owner knows or should know children frequent the vicinity
3) Condition likely to cause injury because the C is unable to appreciate the risk
4) Expense of remedying is slight compared to risk - Known Trespassor (anticipated):
SoC: Protect ONLY from known man-made highly dangerous conditions hidden from known trespassor
NO duty if UT is aware of condition
NO duty if mildly dangerous - Licensee: entrant w/permission but confer NO econ benefit to possessor (e.g. social guest)
Soc: Protect from ALL known highly dangerous conditions hidden from licensee
NO duty if Licensee is aware - Invitee: entrant w/permission AND confers econ benefit to possessor
Soc: Protect from ALL known OR reasonably discovered highly dangerous conditions hidden from licensee
NO duty if Licensee is aware - Public servants (firefighters and PO): NEVER recover based on Premise liab because of assumption of risk
Privities for Assignment and Sublease
Privity of K: lease agreement between L and contracting T
Privity of Estate: lease conveys estate (interest in land) between present L and present T (not future T)
Separate and independent grounds for liability
Tenancy at Sufferance (Holdover)
T holds bare possession and T wrongfully holds over
L option for Terms: 1) Sue to evict based on trespass and recover damages, OR 2) Impose new periodic tenancy based on original lease term (Commercial: yr-to-yr if original 1+yr, or mo-to-mo if
Non-Assignment/non-sublease clauses
Although it’s a restraint on alienation and fully enforceable, Cts strictly construe so non-assignment does not prohibit non-sublease AND non-sublease does not prohibit non-assignment
Violation of clause makes transfer ONLY VOIDABLE thus L must take action to end assignment/sublease
Waiver: permission given by L once waives it all together for future unless L states otherwise or makes new K
Transfer of Easements
Appurtenant:
- Benefit is transferred AUTO w/dominant estate regardless of easement mentioned in deed. CANNOT be transferred separate from the land
- Burden is ALWAYS binding on subsequent owners IF there is notice (actual, constructive, inquiry) regardless of easement mentioned in deed.
In Gross: ONLY commercial easements in gross can be transferred, not personal
Enforcement of Restrictive Covenant (at law)
In order to enforce BURDEN to bind successor, must have: WITHN
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- H+V Privity: Horizontal (common interest is conveyed between original parties grantor/grantee SEPARATE from covenant) privity AND Vertical (successor takes whole estate) privity between promisor and promisee
- Notice: party being enforced against had actual, constructive, inquiry notice
In order to enforce BENEFIT to run to successor, must have: WITV
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- Vertical Privity (successor takes whole estate) privity between promisor and promisee
- NO Notice required
Tenancy at Will
No K
Willful Termination: by either party BUT must give notice to the other AND reasonable time to vacate
Termination by Law:
- Death of either party
- Waste by T (voluntary, permissive, ameliorate)
- Assignment by T
- Transfer of title by L
- Leased land by L
Enforcement of Restrictive Covenant (Equitable Servitude - in equity)
*Similar to enforcement of restrictive covenants except that NO Privity is required to either enforce burden or benefit
In order to enforce BURDEN to bind successor, must have: WITN
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- Notice: party being enforced against had actual, constructive, inquiry notice
- NO Privity required
In order to enforce BENEFIT to run to successor, must have: WIT
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- NO Notice required
Scope of Easement
Follow terms of easement
If terms are silent: easement is presumed perpetual AND presumed use is for reasonable development of dominant estate (development likely contemplated by parties AT THE TIME easement is granted)
Remedy for excessive use: enjoin but easement DOES NOT terminate
Repair of easement: DOMINANT estate must make necessary repairs
